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Below are questions and our responses to Family Law
frequently asked questions that we have found to be very common from people
going through the divorce process or other family-law related issues.
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What can I do to stop the
divorce if I don't want one?
California is a no-fault divorce state.
For all practical purposes, that means one spouse can unilaterally
terminate a marriage based on "irreconcilable differences."
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How long will the process take?
Both parties must be a resident
of the state of California
for six months, and a resident of the county in which they filed for
divorce for three months, before a petition for dissolution of marriage can
be filed. Once the process begins, the soonest the court can grant a decree
(judgment) of divorce is six months.
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Will the Law Offices of
Donald Kilmer represent both me and my spouse in an uncontested divorce?
No. There are firms in the Bay
Area that practice "collaborative law" in which both parties are represented by one lawyer knowledgeable about family
law who can draft agreements and court orders for them. The Law Offices of
Donald Kilmer does not currently practice in the collaborative law area.
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How much will this divorce
cost me? (Also see our Cost Estimates page for more
explanation)
The Law Offices of Donald
Kilmer charges an hourly rate for the services performed by our law office
personnel.
- Attorney typically charges
an hourly rate of $350 per hour for all time spent on the case. This
includes phone calls billed at a minimum charge of 1/10 of an hour
($35). Short letters at a minimum charge of 2/10 of an hour ($70).
Court time is charged for actual time spent to attend the hearing, this includes travel time from
"portal to portal". We do not seek reimbursement for bay
area travel costs (i.e., parking, tolls, mileage, etc.).
- Paralegal time is
billed at an hourly rate of $125 per hour. Paralegal handles all
routine motions, disclosures and discovery. Responding in a timely
manner to all requests made by the paralegal assigned to your case
will reduce your costs and help move the case along in a timely and
cost-effective manner.
- Clerk/Secretary time
is only billed for special projects at $50 per hour. Examples of
special projects include:
- Organization of
new file after a case is transferred from another office
- Large copy jobs
- Retrieval of a
file from storage
Routine correspondence with client (enclosure letters, setting
appointments, etc.) by Clerk/Secretary is not billed to client.
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Can I communicate
with your office by e-mail?
Yes. We prefer to have you open
an e-mail account that is used exclusively for attorney-client
communication in your case. We can send and receive documents in the Adobe
(pdf) format. You can elect at the time that you
retain our office to use this as your sole means of communication, or as a
supplement to the US Mail.
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If I am the primary
caretaker of our children, will I be required to return to work?
Unless your children have special
needs, or you are disabled, you should prepare yourself now for returning
to the workforce. The concept of a primary caretaker for an intact marriage
has limited value for a judge making a custody/support decision about
divorcing parents. The divorce, by its very nature is a change in the
status quo. The children, especially young ones, will need to maximize
their time with both parents in order to preserve the sense of safety and
security that they knew when the marriage was intact. There are special circumstances
for which a judge will not require a parent to return to work. But as a
general rule both parents will be required to contribute to the support of
their children. Child care for working parents is a component of child
support and will be addressed under the family code as a support issue.
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What documents should I
bring to the first meeting with my lawyer?
We can provide you with a
comprehensive list during your initial consultation or shortly after you
retain us. The short list is: copies of all deeds, copies of all mortgage
statements, copies of all property tax statements, copies of your latest
tax returns, copies of all bank statements, copies of all credit card
statements, copies of all retirement accounts, copies of all vehicle
registrations, copy of any prenuptial agreement, copy of any written
agreement between you and your spouse, copies of all insurance policies
including health insurance, copies of any trust instruments and or wills,
and copies of any documents relating to a business owned by you or your
spouse.
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Do you require a
retainer?
Yes. We usually ask for a
retainer of $5,000 to begin divorce proceedings. Based on our experiences
this is the minimum amount necessary to begin a divorce, and see it through
to uncontested resolution. If the total time expended to complete the
divorce is less than $5,000, you will receive a refund when the case is
closed. If the time expended to complete your case exceeds $5,000, you can
either replenish the retainer or pay your balance in full upon receiving
the monthly statements from our office. We accept all major credit cards.
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Does sexual preference
and/or sexual orientation matter during divorce proceedings?
No. It has no bearing on
dissolution proceedings. It has no bearing on division of community
property. It is possible that the other parent may try and make this an
issue during custody proceedings, but the law in California is well settled that sexual
orientation is not a factor that can be considered by the court for
determining custody and visitation.
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I know that
my income and property are a proper subject for disclosure during my
divorce proceeding, can my ex-spouse require the disclosure of financial
information about my new partner and/or spouse?
This is a complicated question.
It depends upon the financial entanglement you have with your new
partner/spouse. The issue arises under the marital standard of living for
spousal support, and income available for child support. This is an area of
family law for which a lawyer's advice is particularly essential.
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Will a judge have to hear
all the intimate and financial details of my family life in order to make
appropriate Family Law Orders?
A judge does not have to hear
ANY details about your life in order to make appropriate orders. It is
possible to submit orders to the court that have been agreed to by the
parties and that the court will sign as a routine matter of course. Most
family law cases settle after the parties have had an opportunity to gather
sufficient information to make an informed decision. With regard to custody
matters, mediation is required by state law. In other words the parties
must meet and try to come to an agreement about what is in the best
interest of their children regarding custody and visitation. If the parties
cannot come to an agreement the court will begin a process of assessment
and/or evaluation before there will be a custody trial. A similar process
occurs with regard to financial issues. The parties will be required to
make good-faith efforts to resolve their financial issues before the case
will be set for trial.
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What happens
during a divorce?
Most divorces follow the
following time line:
- A petition for
dissolution is filed and served on the other spouse.
- A response is filed
by the person who was served with divorce papers.
- If appropriate, one
party or the other seeks temporary orders. These temporary orders will
provide for the temporary custody in care of the children, require
that certain bills and expenses continue to be paid (i.e., mortgage,
insurance, health care premiums, etc.). These temporary orders will
also provide for temporary spousal and child support. Temporary orders
may also address one party's need inability to pay attorneys fees
while the divorce action is pending.
- The parties will
begin the process of mediation to attempt to reach a permanent custody
order. If they are unsuccessful at process of assessment/evaluation
begins before the court will set a custody trial.
- The parties will
begin the process of disclosure/discovery to determine the community
assets and debts.
- The parties will be
ordered by the court to attend a Settlement Officer Conference for the
purpose of trying to resolve simple financial issues.
- If any remaining
financial issues cannot be resolved, those issues will be set for
trial after one additional Mandatory Settlement Conference with a
judge pro tem.
- Whether by trial, or
agreement, a judgment of dissolution will be entered which dissolves
the marriage divides the property and provides for the custody in care
of the children.
- If a divorce is
particularly complicated, or will take a long time, it is possible to
get an early judgment of dissolution only, with the court reserving
jurisdiction to resolve custody and property issues later.
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